SOUTHEAST TEXAS RECORD

DALLAS -- After receiving three opinions from the U.S. Fifth Circuit Court of Appeals and a denial of certiorari from the U.S. Supreme Court, the Volkswagen case that caused a controversy over venue shopping is heating back up as the case continues towards its May trial date.

The litigation arises out of an auto wreck which occurred in Dallas on May 21, 2005. According to court records, Ruth and Richard Singleton were traveling with their 7-year-old granddaughter when they were involved in an accident after slowing their 1999 Volkswagen Golf to adjust to freeway traffic flow.

A car driven by Colin Little collided into the rear of the Volkswagen, sending it spinning. The Volkswagen spun clockwise and collided into a flat bed trailer that was parked on the freeway's shoulder. Although the granddaughter survived the wreck, she was taken to a children's hospital where she later died from a head trauma.

The Singleton family filed a product liability suit against Volkswagen on May 30, 2006, in the Marshall Division of the Eastern District of Texas. The complaint alleges the Volkswagen's front passenger seat was defective and collapsed rearward during the collision, crushing the granddaughter's skull.

Last year, the U.S. Fifth Circuit Court of Appeals granted a writ of mandamus, ordering the transfer of venue case from a court in Marshall to one in Dallas. The decision was the third issued by the court.

Volkswagen sought to change the venue to Dallas because the accident occurred in Dallas, the witnesses and plaintiffs reside in Dallas, the car at issue was purchased in Dallas, medical care was obtained in Dallas, and no known parties or witnesses reside in the Marshall division.

However, it was the plaintiffs' choice to keep the litigation in Marshall.

U.S. District Judge John Ward in Marshall had denied Volkswagen's transfer motion stating, "The plaintiff's choice of forum is a paramount consideration in any determination of a transfer request and that choice should not be lightly distributed."

After Judge Ward denied a motion for reconsideration regarding the transfer, Volkswagen appealed the decision to the Fifth Circuit.

Initially, the appeals court upheld the lower court's decision by holding that it "did not clearly abuse its discretion."

Volkswagen then filed a petition for rehearing and at a rare oral argument for reconsideration the Fifth Circuit agreed with Volkswagen that Ward abused his discretion by applying the wrong legal standard and not properly weighing interest factors.

The appellate court's opinion asserted a 100-mile threshold between the existing location and the proposed location. The court found that "the factor of inconvenience to witnesses increases in direct relationship to the additional distance traveled."

The court remanded the case to Marshall with instructions to transfer to the Dallas Division. Critics viewed the decision as giving parties seeking transfer of a product liability case a slight advantage.

Then on May 23, 2008, in New Orleans, the Fifth Circuit vacated its previous decision and granted the plaintiffs' petition to review the initial decision with en banc proceedings.

In its opinion issued on Oct 10, 2008, the Fifth Circuit wrote that the district court "abused its discretion in denying the transfer" and the only factor keeping the case in Marshall is the plaintiffs' choice of venue.

"Concluding that the district court gave undue weight to the plaintiffs' choice of venue, ignored our precedents, misapplied the law, and misapprehended the relevant facts, we hold that the district court reached a patently erroneous result and clearly abused its discretion in denying the transfer," the opinion stated.

The opinion also attempts to clarify what role a plaintiff's choice of venue will have in the venue transfer analysis. The Fifth Circuit wrote that the lower court held Volkswagen to a stricter legal standard, which gave the plaintiffs' choice inordinate weight.

The Fifth Circuit applied Section 1404 (a) which provides "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

Public and private factors in determining whether a case should be transferred include the ease of access to proof, availability to secure witnesses, cost of attendance for witnesses, court congestion, local interest, if the forum is familiar with the law that will govern the case, avoidance of conflict of laws, and other issues that may make a trial of a case "easy, expeditious and inexpensive."

The Fifth Circuit concluded that the lower court erred in properly weighing these factors. With the majority opinion, the district court ordered the transfer of the case to the Dallas Division of the Northern District of Texas.

It was filed there March 25.

Since then, the family has filed motions arguing that Volkswagen is attempting to hide crash test data that recreates a similar wreck.

The Singletons believe that Volkswagen conducted performance test on similar incidents, including some 30 specific crash tests conducted in Germany that spanned a three-year period during which the litigation was pending. Further, the plaintiffs argue that the defendant should disclose information on alternative seat designs which claimed enhanced occupant protection.

According to the court records, "These tests included actual vehicle-to-vehicle crash tests, dynamic sled tests, rear-impact tests involving a wide variety of seats, and tests during which a child dummy seated behind the subject seat was impacted by a front-seat dummy."

Arguing more that the defendant has spent more than nine months of directly violating court rules, the plaintiffs filed a motion to compel and a request for sanctions against the German company.

The case is scheduled to begin jury trial on May 10.

The plaintiffs are represented by Tyler attorney Jeffrey Embry of the law firm Hossley Embry, LLP and attorney Thomas Crosley of San Antonio.

U.S. District Judge Ed Kinkeade is presiding over the litigation.

Case No: 3:09cv0547